S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
J U D G M E N T.
KEBU RAM V. THE STATE OF RAJASHAN
S. B. CRIMINAL APPEAL NO.260/89,
against the judgment dated 4.7.89,
passed by Shri N.L.Meena, RHJS,
Additional Sessions Judge, Raisinghnagar
in Sessions Case No.41/86.
DATE OF JUDGMENT ::: 21/08/2009
HON'BLE MR. JUSTICE C. M. TOTLA
Mr. M.K.Garg, for Appellant (s).
Mrs.Chandra Lekha, PP, for the State.
BY THE COURT :
Appellant is aggrieved of his conviction and sentence awarded of
four years’ rigorous imprisonment with fine of Rs.4,000/- for the offence
of Section 304 Part II IPC to the petitioner recorded per judgment dated
4.7.89 in SC No.41/86.
Heard learned counsel for the appellant and learned Public
Prosecutor.
Alleged events in short, according to prosecution, are that on
26.3.86, ASI in-charge PW 11 received a memo Ex.P6 of medical officer,
Government hospital, informing that patient Bhanwar Lal s/o. Sardara
Ram, age 26 years, r/o. Shipuri, a case of injury is brought at hospital on
that day at 3.30 P.M. so PW 11 ASI reached RCP Government hospital,
Vijanynagar, where injured Bhanwar Lal s/o. Sardara Ram was admitted,
in a severe injured state-and in presence of doctor PW 6 recorded
statement of Bhanwarlal s/o. Sardara Ram Ex.P7. Bhanwarlal stated that
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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on that day morning, when he with his father, was sitting at his home,
where also were Dhiraram and Punaram – came Kebu Ram (the
appellant) and asked him to accompany to field, but he (deceased
Bhanwarlal) declined as it was day of “rama rami” (day of hpli festival
when visiting pleasantries exchanged) but Kebu Ram insisted telling that
shall come after five minutes after unloading fertilizer from cart, but
father (of Bhanwarlal) also stated that not possible to return in 5-10
minutes, still Kebu persuaded so he (Bhanwarlal) and Keburam both
taking cart of Banwari and loading it with fertilizers arrived at 9 A.M. at
agriculture field 15 BGD of Keburam and unloading it, Bhanwarlal asked
Keburam to return soon, but Keburam told of visiting Dhani of Santa
Banta so both went to their dhani – there half or three quarter bottle of
wine consumed by them so Bhanwarlal completely intoxicated, less was
consumed by Kebu who brought Bhanwarlal back to his field, where
inflicted injury of some article at his right thigh. Bhanwarlal described that
as Kebu inflicted at his right thigh severally bleeded so he asked him
(Keburam) that injury big one and he cannot return home so he
(appellant) to take him at home and also asked for water then appellant
brought him to village. Stated that injury of “Gandasi” (spear like) is
inflicted by appellant, injured taken to hospital by his elder father Dhira
Ram and injury cannot because of animosity relating to agreement for a
watch entered a month ago which appellant wished to be rescinded but
he not – ASI PW 11 writing statement Ex.P7 on basis of it registered FIR
No. 37/86 Ex.P16 for the offences of Sections 307 and 324 IPC and
forwarded Ex.P8 to medical officer to examine and prove injury report
but medical officer mentioned that it is a dispensary and as injured not in
condition of shock whose pulse and BP not recordable so he immediately
forwarded from there to Ganganagar hospital. PW 11, in course of
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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investigation on 26.3.86, obtained blood stained worn cloths shirt, under-
wear and also bed-sheet preparing Ex.P13 and as deceased Bhanwarlal
undergoing treatment expired at Ganganagar hospital, so prepared
memos Exs.P14 and P15 on 27.3.86. Post-mortem conducted and report
Ex.P10 prepared. Appellant arrested on 2.4.86 vide memo Ex.P17 and as
per his disclosure of 6.4.86 reduced in writing by SHO PW 7 as Ex.P9 and
at his instance recovered shirt blood stained and a bed-sheet from room
of his house and sealed preparing Ex.P1. Dy.S.P. PW 12 in course of
investigation on 17.3.87 inspecting field 15 BGD of accused-appellant, the
said place of incident, prepared memos Ex.P3 and P3A, where blood was
at an area of 5 ft. x 2 ft. so sample of blood stained and also plain soil
collected and sealed preparing memos Exs. P4 and P5. Appellant on
8.4.86 at 5 O’clock n evening disclosed PW 7 that the “Gandasi” is
concealed by him in kotha (large container made of clay and mud) lying at
his residential house and PW 12 writing information Ex.P18, at leading
instance of appellant, recovered from kotha a gandasi which was 5 ft 3
inches long with mettle fulcrum of nine inch having some blood like stains,
and sealed preparing memo Ex.P2 and site plan Ex.P19. Keeping packets
of all the articles safe in malkhana, same were deposited obtaining receipt
Ex.P12, for examination at laboratory. Recording statements of witnesses
and completing investigation, charge-sheet for the offences of Sections
302, 307 and 324 IPC submitted in Magisterial Court and on committal,
the sessions case registered.
Appellant charged for the offence of Section 302 IPC that he on
26.3.86 at about 9.30 A.M. at field 15 BGD Anupgarh to cause and
knowing definitely that by doing so, shall cause death, inflicted injury of
“Gandasi” to Bhanwarlal causing his death, thus murdered him, denying –
claimed trial.
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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Prosecution examined 12 witnesses among them are Sardara Ram
PW 1 father and Dhira Ram PW 2 elder father of deceased. PW 6 is
doctor medical officer of dispensary who informed police station of injured
deceased being admitted and before him recorded by ASI PW 11 were
statements of deceased Ex.P7. Dr. Gupta PW 8 who conducted post-
mortem, proves report Ex.P10. PWs 3, 4 and 5 are “motbirs” of recovery
etc. Head Constable PW 9 malkhana incharge and constable PW 10
depose about safe custody of packets of article and depositing same at
laboratory. PW 11 ASI the then incharge, PW 7 SHO and PW 12 Dy.S.P.
are investigating officers.
Appellant explained that witnesses all belonging to complainant
side are telling lie – in defence examined is Santa Singh DW 1 who states
that appellant coming to him at noon told of Bhanwarlal attacked by ox
having received injuries. He (the witness) went where Bhanwarlal was
lying injured who told of injury by horns of ox and he taken in cart by
this witness to village.
Learned Judge arriving at conclusion that appellant inflicted the
injury, but not with intention to cause death – neither is on vital part
convicted and sentenced under Part II Section 304 IPC.
Learned counsel for the appellant argued that case is registered on
the alleged statement of injured taken at hospital, whereas all witnesses
depose that incident reported on telephone at police station and police
official did come in village at house so the statement cannot be treated as
FIR – for the above reason also strong basis that material part that is
earliest version of deceased is suppressed – no person causing injury shall
bring injured to or home – per statement of deceased, they went to Dhani
of Santa Banta but none of them among prosecution witness – as per
prosecution and FIR deceased went willingly with appellant and them both
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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also consumed liquor so no occasion of any quarrel was – both went in
bullock cart and unloaded at field so defence version of deceased having
received injuries by cart is quite possible and worth believable. Argued
that had deceased not been injured in any other manner or injury inflicted
by appellant, certainly appellant would not have rescuedly brought
deceased at own home. Lastly argued that incident is of March, 86 and
appellant remained in custody about 6-7 months – now above 70 years of
age suffering from paralysis and other permanent disability so sentence of
period undergone shall meet ends of justice. Submitted that appellant is
paralyzed – in support of contention submitted copy of permanent
disability certificate provided by Government hospital and original made
available for perusal.
Learned Public Prosecutor submitted that the learned trial Judge
examining and evaluating every aspect of the matter has rightly convicted
and sentenced appellant.
Considering rival arguments, perused assailed judgment, evidence
produced and record.
Dr. Moman Ram PW 6 deposed that on March 26th, he was posted
at hospital Vijaynagar where at about 3.30 P.M., Bhanwarlal was bruoght
with a severe injury at upper right thigh so he informed vide note Ex.P6,
to police station and then incharge Manoharlal coming, recorded in his
presence statement of Bhanwarlal which Ex.P7 also bears endorsement
and signature of this witness the doctor. PW 6 further states that he
immediately providing first aid and as injured was not in good condition so
for blood transfusion and essential treatment referred to Ganganagar
hospital, and for this reason he could not prepare injury report and
accordingly also informed police station in writing on Ex.P8, the request
for examination. PW 6 states that Bhanwarlal though not unconscious but
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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was in serious condition – endorsement on injury Ex.P8 mentions that
pulse imperceptible and BP not recordable and wound bleeding.
Dr. Gupta PW 8 medical jurist Government hospital Ganganagar
deposes that Bhanwarlal referred by incharge Vijaynagar hospital and
admitted in surgical ward at 8.00 P.M. 26.3.86 scummbed at 10.55 P.M.,
and he conducting post-mortem on body at 2.15 P.M. of 27.3.86 prepared
Ex.P10 Bhanwarlal s/o. Sardararam who identified by his father died as a
result of excessive haemorrhage (bleeding) by injury a wound 5 cm x 3.5
cm muscle deep at right ingual region that is upper part right thigh which
injury was caused by sharp weapon cutting feumaral vessels and muscles.
Dr. PW 8 deposing that in normal course injury sufficient to cause death
in cross-examination says that organ where injury inflicted is vital but part
is not vital.
Per evidence of Vijaynagar hospital doctor PW 6 at 3.30 P.M., injury
was severely bleeding so and per evidence of other witness also is proved
that this injury was caused after morning of 26.3.86. Also stands proved
that deceased expired at 10.00 P.M. same night due to above injury.
Sardara Ram PW 1 deposed that in morning of second day of Holi
festival, he, Dhiraj, Bhura and his son Bhanwarlal were at home – came
Kebu (appellant) and told Bhanwarlal to accompany for unloading card of
toodi (collected gober and like things used as agriculture fertiliser) and
they soon shall be coming and PW 1 told son that day is of “Ramrami”
and not possible to return soon so not to go but appellant – spoke of
returning in five minutes and Bhanwarlal accompanied him. PW 1 states
that thereafter, his daughter age 8 years informed that brother is at
house of Kebu who brought him after badh (meaning like injury) so he
soon at about 1.00 O’clock, along with Dhira and Puna reached at
home of Kebu where Bhanwarlal with injury of palm length at right leg lay
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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on cot – Bhanwarlal weeping in a pity state told of badh (injury) by Kebu
with a gandasi and because of some dispute in relation to agreement
regarding watch. According to the evidence of PW 1, at house of Kebu
also was Santa and than Dhira Ram going to inform at police station,
came back in half an hour after informing, police arrived at 2 – 2.15 P.M.
and Bhanwarlal taken to hospital in police jeep where at Vijaynagar
hospital they reached at about 3.30 P.M. where given medical aid in 30-45
minutes left for Ganganagar. PW 6 admitting of having preferred some
application in relation to incident to the Home Minister and higher police
officials, denies that in applications he also incriminated Santa and Banta.
Dhira Ram PW 2, elder brother of PW 1 deposed that he and others were
at house of PW 1 there came appellant Kebu Ram and asked Bhanwarlal
to come for unloading cart, but Bhanwarlal refused as day of “rama-rami”
but Kebu told of returning in five minutes so Bhanwarlal accompanied him
– then daughter of PW 1 informed that injuring Bhanwarlal, Kebu has
brought him in his cart so they went at house of appellant Kebu where
Bhanwarlal lying on cot having a bleeding injury at right thigh – was
crying – Kebu and Santa did not allow him to go near so he going to
Maharaja (member of thakur family) asked to inform – thereafter came
police and thanedar slapping Kebu Ram twice asked why kept
(Bhanwarlal) there with them carried Bhanwarlal to hospital and there,
statement of Bhanwarlal were recorded – doctor after first aid referred for
Ganganagar hospital and they all arrived Ganganagar at about 8.00
P.M., where Bhanwarlal died by about 10 O’clock. The witness PW 2
state of telling by the girl of beating by Kebu but denies he having stated
so to police as is mentioned in his investigational statement Ex.D2 so the
position per PW 2 remains that she told so to PW 2. At hospital, SHO
recorded statement of Bhanwarlal who was speaking and little conscious.
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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Father pf deceased PW 1 says that deceased was wearing baniyan,
underwear, shirt and payjama which clothes are not seen by him
thereafter and PW 2 says that safa and baniyan of Bhanwarlal at house of
the appellant were not those he was wearing. With this is the fact that
deceased was in injured and painful state so obviously PW 1 and PW 2
were disturbed and even if clothes changed, they do not make any effect.
ASI PW 11 declining of having received any information on telephone at
police station, says that if any such message was, the same was not
taken by him. Per above evidence of PW 1 and PW 2, it appears that
police arrived there who helped Bhanwarlal to hospital, but no significant
for recording FIR need to be attached to this fact because the injury was
such as caused death at 10.00 P.M. so naturally and ought to have been
every attention towards first providing medical aid. Therefore, if any
information of any nature was available or given prior to recording
statements of deceased at Vijaynagar, non-recording or not taking of that
as FIR does not make any effect and nature of statement Ex.P7 as FIR is
not diminished. If any such no-cohesive information even if it was that
cannot tantamount to FIR, particularly when on the basis of the statement
of injured who scummbed soon recorded and the case registered.
Thus, it stands proved that injured was taken to hospital where he
was in a physically fit condition to give statement. The statement Ex.P7 is
recorded by the then incharge ASI PW 11 in presence of doctor PW 6. PW
11 deposes that he had receipt of information Ex.P7 of medical officer
arriving at hospital recorded statements of Bhanwarlal. On Ex.P7 with
endorsement and signature of PW 11 and also with endorsement and
signagure of PW 6 the medical officer is mention of time 4.4.5 P.M.
Dhira Ram PW 2 categorically states that he accompanied all the way and
statement taken in his presence Ex.P7 beneath also have thumb
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
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impression of PW 2. Bhanwarlal died of these injuries at 10.00 P.M. so this
statement also came within specific category of statement under Section
32 of Evidence Act.
According to statement Ex.P7 as and after he accompanied
Bhanwarlal (as above narrated by PWs 1 and 2 and also mentioned in this
Ex.P7) they both taking cart of Banwari arrived about 9 A.M. at field 15
BGD of Kebu Ram – after unloading he asked Kebu to return hom being
day of “Ramrami” (but) then on asking of Kebu Ram both went to Dhani
of Santa Banta – there consumed half or three quarter bottle of liquor –
deceased in full intoxication and appellant consumed little – appellant
carried him to his field – there appellant inflicted injury of something at
his right thigh. Bhanwarlal also stated that he injured by appellant as
cannot move (or go) to home, asked appellant to carry him to home –
also asked for providing water – then he taken by Kebu Ram to village
and then taken to hospital by Dhira Ram. Statement also finds mention
of disagreement over an agreement of watch having taken place a month
earlier and that injury by Gandasi blown by appellant.
Evidence of PW 1 and PW 2, mentioned above, disclosed that
deceased went with appellant on appellant’s insistence. Also surfaces that
thereafter PW 1 and PW 2 did see Bhanwarlal only in injured state lying
in the house of Kebu Ram. Non-informing by Kebu Ram himself is
regarding how where by what in what manner injury caused to deceased.
This minimises possibilities of receiving injury in any other was. Further,
PW 1 and also PW 2 deposed that Bhanwarlal did tell that injury is
caused to him only by appellant.
Though the statements of the deceased Ex.P7 mentions of some
dispute about agreement of watch (ghari) entered about a month earlier –
not described is existence of such or any dispute by PW 1 or PW 2 or
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
10
any other witness. Considering evidence of PW 1 and PW 2, it appears
that if any such dispute was, it was too trifle one which came to there
knowledge only at happening of this incident. Appellant himself has not
mentioned of any such disagreement. Lastly, for the sake of argument,
assuming so disagreement even than, definitely of a nature leading to
false imputation for this incident-had there been any substantial
differences, no reason could have been of deceased going with appellant
in manner described. Appellant has not put in any explanation – defence
witness Santa Singh DW 1 state that at 12 – 1 noon, to him at his field,
came appellant and told him of Bhanwarlal being injured by an ox so this
witness going asked Bhanwarlal who narrated as to having been injured
by horns of ox – or with pointed horns was also there and Bhanwarlal
taken by him in cart to village. Santa Singh DW 1 admits that he did not
tell so to police same day but after a week. As described, quite acceptable
is evidence that deceased was at home of appellant and no other plausible
fact of disclosing sustaining injury in any other manner is so version of
DW 1 is to be discarded.
Appellant arrested on 2.4.86 noon – on 6.4.86 disclosed to SHO PW
7 that shirt, tripal and a bed-sheet having blood stains are in external
western room of his residence. The SHO PW 7 states that at the instance
of appellant from room at his residence, tripal, bed-sheet and a shirt was
recovered and sealed. Memos are Exs. P1 and P9 and independent
witness Dungar Ram PW 3 supports this recovery. Thus, is proved that
from the house of the appellant, these articles were recovered. Other
Investigating Officer Dy.S.P. PW 12 deposes that on 27.3.86 he inspecting
site, collecting samples, prepared memos Exs. P3, 4 and 5. Independent
witness Keshuram PW 5 supports. PW 12 states that appellant voluntarily
disclosed that Gandasi is in his house lying in a kotha and than per this
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
11
information and at instance of appellant, he recovering gandasi, sealed it
– respective memos are Exs. P 18 and 2. One of the independent
witnesses Sultan Singh PW 4 though declared hostile, supports recovery.
PW 4 seems to have been declared hostile because he states of recovery
of an axe and not Gandasi. PW 4 says that appellant from his own house
taking out axe, presented the same to police. Sultan Singh PW 4 says that
by the words Gandasi mentioned in Ex.P2 he understands axe and the
article recovered was 2 – 3 feet length having fulcrum of about 2 – 3
inches. Thus, PW 4 supports and thus is proved recovery of such article of
spear (the gandasi) from the appellant’s home. Testimony of malkhana
incharge head constable PW 9 read with of constable Amar Singh PW 10
proves that all articles safely deposited and kept in malkhana on the day
collected or recovered and deposited in laboratory by constable PW 10
obtaining receipt Ex.P12. FSL report Ex.P20 describes that five packets
marked A to E received intact and sealed had described articles and on
all except control soil and gandasi were stains of ‘o’ group human blood.
As such proved is that on the cloth worn by deceased at hospital, on
kameez, tripal and bed-sheet recovered from the possession of appellant
and also at spot was human blood “o” group.
Considering evidence, no other inference other than that appellant
inflicting the injury to deceased can be so the appellant is rightly
convicted. Considering question of sentence, it appears that both
consumed liquor willingly, at same place and in harmonious circumstance
– then as above was some thing or reason occurred and appellant inflicted
injury. What happened is not known and dispute of watch, if any, was
perhaps not material at least till when they both willingly consumed liquor,
but simultaneously is the fact that no other reason and no signs of any
struggle or scuffle are. Incident is of mid 80s when appellant aged about
S.B.Criminal Appeal No.260/89
(Kebu Ram v. The State)
12
was 50 years and now around 70. Permanent disability certificate of
August, 08 issued by the medical board comprising of three junior
specialists medicine, surgery and orthopedic, states age at 68 and that 50
per cent permanent disability with some effect on right side. It appears
that appellant remained in custody from early April to September last 86
and then for a month in July,89 thus, totaling about six-seven months.
Considering very specific circumstances described above and as appellant
on asking of Bhanwarlal brought him at home and now, in the opinion of
the Court, and now no useful purpose will be served by sending the
appellant to prison and appropriate is to punishing for the period already
undergone and to impose appropriate fine. Considering of Rs.4,000/-
than imposed by the trial Court, the fine now quantified to be
Rs.30,000/-.
Accordingly, the appeal is partly allowed. The conviction of
appellant Kebu Ram s/o. Mohan Gir for the offence of Section 304 Part II
IPC recorded vide judgment dated 4.7.89 (in SC No.41/86) by the Court of
Additional Sessions Judge, Raisinghnagar is upheld, but altering the
sentence awarded to appellant for the above mentioned offence, is
sentenced to imprisonment for the period already undergone with fine
Rs.30,000/-, in default to undergo four months’ rigorous imprisonment.
Out of fine Rs.30,000/-, to deposit Rs.15,000/- by 1.10.09, Rs.5,000/- by
1.11.09, Rs.5,000/- by 10.12.09 and remaining Rs.5,000/- by 15.1.2010,
in trial Court failing which to appear on above mentioned dates before the
trial Court for serving out the awarded sentence.
(C.M. TOTLA),J.